The Constitutionalist

Terry Eastland

January 14, 2013, Vol. 18, No. 17

Robert H. Bork, we all know, didn’t sit on the Supreme Court. His legacy thus cannot lie in votes cast and opinions written. You have to look elsewhere, and you certainly could begin with his earliest work at Yale Law School, which was in antitrust. In a series of law review articles and ultimately a game-changing book, The Antitrust Paradox, published in 1978, Bork worked out a powerful critique of the case law. In showing its defects, he influenced the movement toward deregulation.

As important as Bork was to that development, however, his name will forever be associated with the great debates of the past half-century regarding the Supreme Court and its exercise of judicial review. And it is here that his achievement was especially remarkable.

By the 1960s the power of federal courts to examine government actions for their constitutionality, known simply as judicial review, had become increasingly controversial, thanks to its frequent exercise in behalf of liberal ends by the Warren Court, which immodestly declared in a 1958 case that its rulings in constitutional cases were synonymous with the Constitution. Judicial review was a topic that law professors naturally turned to—usually to show how they would justify the Court’s activist decisions.

Bork, however, took a different path. Instead of assuming the legitimacy of judicial review, he asked whether the power, which is not explicitly stated in the Constitution, is actually constitutional. In answering this question, Bork looked at the foundations of the Constitution in order to identify their basic premises. And from those premises—the central one encompassing majority rule but with protection for the rights of minorities—Bork derived the authority for judicial review.

“We have,” as he put it, “placed the function of defining the otherwise irreconcilable principles of majority power and minority freedom in . . . the federal judiciary, and thus, ultimately, in the Supreme Court.”

Of course, Bork’s argument about judicial review didn’t end here. Just because federal courts have the power of judicial review, he said, doesn’t mean they can exercise it any way they like. Constitutional cases are cases in which some government action is said to violate a provision of the Constitution. And, Bork argued, the power of judicial review must be confined to enforcing the meaning of the provision at issue.

And what are those meanings? Bork argued for a method of discerning them that he described, correctly, as “once the dominant view of constitutional law”—namely, that “a judge is to apply the Constitution according to the principles intended by those who ratified the document.” Bork thus was an “originalist,” a term used to denote someone who seeks the meaning of a legal text at a point in time: its origin.

You could see Bork’s originalism in arguments he advanced while solicitor general in the 1970s. For example, in Gregg v. Georgia (1976), with the constitutionality of the death penalty at issue, Bork told the justices that those who framed the Eighth Amendment’s prohibition of cruel and unusual punishments did not intend “as an original matter” to outlaw capital punishment because “they prescribed the procedures that must be used in inflicting it” elsewhere in the Constitution (specifically, the Fifth and Fourteenth Amendments).

In 1982 President Reagan appointed Bork to the federal court of appeals in Washington. And in 1987 Reagan nominated Bork to the Supreme Court. Raging by then was a debate over constitutional interpretation in general, and originalism in particular, a debate in which Bork, of course, had been a notable participant. A Democratic Senate sympathetic to noninterpretivist approaches and activist decisions (such as Roe v. Wade in 1973, which created a woman’s right to abortion) refused to confirm him. But the Senate could not end his advocacy of originalist constitutional interpretation. In 1990 Bork published The Tempting of America, in which he laid out his critiques of noninterpretive approaches and made the case for originalism, while defending himself against charges senators and interest groups made during his hearings.

Bork never did with constitutional interpretation what he had with antitrust: He didn’t write a series of articles developing and refining originalism. He was not a legal historian. Not incidentally, researching the history of constitutional provisions wasn’t exactly a preoccupation of law schools when Bork first began thinking about judicial review. There was a reason for that: Since the 1930s the Court had largely moved away from confining constitutional meaning to text and history. Bork’s importance lay in the fact that he was one of the few scholars in the 1960s who thought constitutional interpretation had gone seriously wrong, and he was willing to say so.

In the past quarter-century, others have come in his wake, as scholars have made extensive inquiries into the original meaning of various parts of the Constitution, among them the Commerce Clause and the Necessary and Proper Clause, the Second Amendment and the Fourteenth Amendment.

Meanwhile, political conservatives aren’t the only ones now professing originalism. Some libertarians do, and some liberals also. There are serious disagreements among these groups. But they are looking for constitutional meaning where Bork was among the first to say you should be looking. More judges are doing that, too.

“Today,” wrote Akhil Amar shortly after Bork’s death last month, “all serious constitutional scholars and most justices are far, far more attentive to originalist arguments than before.” Amar, a student of Bork’s more than 30 years ago and a leader among liberal originalists, credited Bork’s “clarion call for renewed attention to constitutional text, history, and structure.” It was, he conceded, “not without effect.”

With his bestselling books, Bork also may have reached lay audiences. If so, the effect here may have been to confirm for those protesting the Obama administration’s expansions of government (in the Tea Party but also well beyond it) that it’s okay to seek guidance in our politics from the Constitution and thus to ask whether ours is still a government limited by its enumerated powers or one that has jumped those rails and may attend to any social need.

“Constitutionalism” is an old-fashioned word meaning the systematic constraint of government power. As explained by Princeton political scientist Keith Whittington: “Constitutionalism asserts that there are limits to what government can justly do and creates institutions to prevent government from overstepping those limits.” The most important of those institutions is the Constitution, and it was that law, its proper interpretation and application, and its higher status—as indeed “the supreme law of the land”—that Bork kept reminding people about. He was a “constitutionalist” in addition to being a Marine—two excellent ways to have served your country.